The Eviction Lawsuit Process
Step 1 Serve tenant(s) with notice (notice to pay or quit; notice to cure covenant, notice terminating tenancy); a copy of the notice must be personally served or, if tenant not available, posted on front door (and another copy mailed); (this is usually handled by an attorney service; if client/landlord is serving the notice, the original notice is maintained for use at trial if matter is contested; attorney’s office will prepare a “proof of service”–stating the date, time, and manner of service of the notice-to be signed by person who served notice)
Step 2 After expiration of the notice period and assuming tenant has not complied: summons and complaint are filed with court and served on tenant(s) by a licensed process server; tenant has 5 days to file an answer with the court; if tenant does not, attorney will obtain a default judgment for possession; if tenant files an answer, attorney will file a Memo To Set Case for Trial with the court, and a trial date will be set within 21 days
Step 3 Once a judgment for possession is obtained (whether after a trial or by default), a writ of possession is issued by the court and sent to the sheriff’s office who goes to the property a posts a notice saying that the locks will be changed and tenant will no longer have possession in 5 more days; sheriff will call you to set up time and date to change locks
In the event a tenant leaves personal property (e.g., furniture, pots and pans, clothes) behind: if the “garage sale value” of the property is less than $300, you can dispose of it; if the total value of the property is more, a special notice, drafted by the attorney, must be sent to tenant giving the tenant the opportunity to take back the property.
FAQ
If a notice terminating tenancy has been served, can we still accept rent? You can only accept rent up to the date the tenancy is terminated. For example, if the notice states tenancy is terminated in 30 days which is March 21, you can only accept 21 days of rent on March 1st.
After a tenant has been served with a notice to pay or quit and rent is not paid within the notice period but is offered after the notice period, can we accept rent? Not if you intend to proceed with an eviction action; you must return the rent. However, if the full amount of rent is offered during the notice period, you must accept it.
Under what circumstances should a “notice to cure covenant or quit[2]” be prepared and served? When a tenant is doing something in violation of his/her lease which the tenant has the ability to correct, such having a visitor for more than 14 days. If the tenant doesn’t “cure” the breach(es) of the lease, you can then file an eviction lawsuit (“unlawful detainer”).
How much notice does a tenant get? In non-payment of rent cases and where there is criminal activity at the premises, California statutes provide three days, but with subsidized housing, I recommend 10 days. With notice to cure covenant or quit: 30 days; to terminate tenancy for cause: 30 days.
[1] Non-payment of rent, breach of covenant (examples: unauthorized occupant, failure to recertify, excessive noise, drugs)
[2] “Covenant” is another word for “promise,” in this case, usually a lease provision
